Law Times

PAGE 10 FOCUS may 17, 2010 • Law Times rofessional angst over in- civility tends to wax and wane, but a new crusade has begun to ensure lawyers and the public know that be- ing civil is an important part of being a lawyer. In fact, Law Society of Up- per Canada Treasurer Derry Millar is making a personal project of cementing civility into a protocol for all legal pro- fessionals to follow. Before Millar fi nishes his term in June, he's determined to raise awareness about the issue in the profession. His interest was piqued by a number of red fl ags. "One of the things that concerned me was that from 2004 until 2008, complaints about incivility increased from 11 per cent to 33 per cent of total complaints. And when both the Coulter Osborne report and the Code-LeSage report talked about it, it was LSUC moves forward with civility crusade P BY JUDY VAN RHIJN For Law Times clear to me that it is an issue that needed to be addressed." Millar convened a series of provincewide meetings on the issue from November until Feb- ruary. Allan Stitt of ADR Cham- bers facilitated the open-ended discussions addressing what to do when faced with incivility and the challenges of reporting it. "Th e stories and suggestions that came from the members of the bar, senior judges, and law clerks were absolutely fascinat- ing," says Stitt. Andrew Murray, a partner at Lerners LLP's London, Ont., of- fi ce and incoming vice president of the Ontario Trial Lawyers As- sociation, believes it's important to remind people that civility is one of the things that distinguish a profession from a trade. "We are all working for the common good of excellent advocacy," he says. "When we articulate a cli- ent's position, it's not personal. People are shocked when I'm not opposing them on every un- dertaking. I like to tell them, 'I many of the issues are "Toronto- centric" as a result of working in a city "where lawyers run into each other much less frequently and there are too many rats in the cage." But Millar says the forums 'Judges thought that if they referred serious problems to the law society, they would never hear back,' says Derry Millar. put the civil in civil litigation,' and they fi nd that disarming. But it's a nicer way of existing in this world and it yields very good results for the client." Murray fi nds little problem with incivility in smaller com- munities like London and thinks disproved this theory. "Usually, at the beginning of discussions in regional centres, people would say, 'We don't have that problem here.' But as people got talking, they recognized diff erent types of incivility that were a problem for them. Our statistics show that complaints about incivility come from all over the province." Th ere will be a report on the meetings, which Millar hopes to present to Convocation before the end of his term. Recently, he has posted civility protocols on the law society web site outlin- ing how to approach the prob- lem. Th e protocols are aimed at the judiciary, which deals with civility issues every day. "Recom- mendation 34 of the Code-LeS- age report says that courts have a role to play if conduct violates Announcing a special Interim Edition Ontario Annual Practice 2010 Interim Edition Includes the new amendments to the Rules of Civil Procedure! Major amendments to the Rules of Civil Procedure came into effect January 1, 2010. That's why we've created Ontario Annual Practice 2010 Interim Edition, which consolidates the amendments to the Rules of Civil Procedure and provides expert author commentary and practical advice on what the new rules mean and how they will apply. 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Ontario Annual Practice, Interim Edition includes all of the great features of the traditional OAP, as well as: • a general description of the newly amended Rules of Civil Procedure • pertinent case annotations - the cases which are no longer relevant in light of the amendments have been removed • a thorough overview of the amendments • a synopsis of each newly amended rule as well as expert commentary • the new Practice Directions for civil applications, motions and other matters in the Toronto region effective January 1, 2010 And with the monetary limit of the Small Claims Court increased from $10,000 to $25,000, this edition of OAP includes: • the amended rules of the Small Claims Court • case annotations • the amended Small Claims Court forms Hardbound (Main Volume) • 1872 pp. • Perfectbound (Forms) • 832 pp. • CD-ROM January 2010 • $89 • On subscription (includes both volumes, CD-R0M, paper supplements & e-notes) P/C 0645140000 • One time purchase $94 • P/C 0645010999 • ISSN 0318 3556 Get the June edition FREE when you buy this special Interim Edition. T BONUS: wo Editions for the price of one! Carthy_OAP Interim (LT 1-2x4).indd 1 www.lawtimesnews.com 2/17/10 1:46:01 PM the Rules of Professional Con- duct," Millar notes. "Th e proto- cols deal with referrals and com- munication afterwards. In my discussions with Michael Code and Pat LeSage, it became clear that the law society had com- munication problems. Judges thought that if they referred se- rious problems to the law soci- ety, they would never hear back. Th ey had stopped sending mat- ters over because they thought the law society didn't do any- thing, which was incorrect, but it was obviously necessary to correct the perceived communi- cations problem." Glenn Hainey, an elected bencher, undertook discussions with judges from the Ontario Court of Justice, the Superior Court, and the Court of Appeal. Th ey indicated some people could improve through mentor- ing. It was also apparent there was a reluctance to report behav- iour that was inappropriate but not serious enough to merit dis- ciplinary action. As a result, the protocols direct judges to refer incivility complaints for mentor- ing rather than discipline. "Part of the problem is that there is not as much mentor- ing going on these days," Millar points out. "With the issues with legal aid, there are not as many young lawyers working for other criminal lawyers." Th e law society intends to draw on mentoring programs al- ready run by bodies such as the Criminal Lawyers' Association, Th e Advocates' Society, the Min- istry of the Attorney General, and its own professional development and competence department. Mentoring will be voluntary, but a lawyer who refuses assistance may then move into the regula- tory process with the potential of disciplinary action. "As part of the protocol, the judge or justice of the peace who observes the behaviour should be the one to report it," says Mil- lar. "If lawyers complain about problems of incivility, they go to the complaint resolution depart- ment, which attempts to resolve it by educating people about best practices and may refer people to mentoring as well. It may be that someone simply doesn't under- stand that things could be done in a better way. If they make the change, the matter may be re- solved. Each case is diff erent." In fact, referrals have been coming in under the new sys- tem since last year. "Now the judiciary feels there's a commu- nication channel that's work- ing," Millar notes. But it remains to be seen if reporting will increase as a result. Murray suspects it won't. "I'm sure everyone hopes that we can self-regulate so it's not necessary to make an example of people," he says. "I hope we can contain ourselves and I think we've already made strides in that direction. People are practising self-censor- ship more, although it may just make them more quietly uncivil. You never know what people are thinking." LT The Lat e Honourable Jus Der r y Millar and Jef tice James J. Car an f G. Co w t h y

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• Alternative Paths
• Civil Injustice
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